Scottish Court of Session Decisions

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Cite as: [1876] ScotLR 14_51, [1876] SLR 14_51

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Wednesday, November 8.

14 SLR 51

Special Case—Don and Others (Webster's trustees).

Subject_1Succession
Subject_2General Conveyance
Subject_3Special Destination.
Facts:

A truster by his settlement conveyed to trustees his whole means for certain purposes. Thereafter he acquired certain heritable property, the disposition whereof he took to himself and “his assignees and disponees,” whom failing to his sister and “her heirs and assignees whomsoever in
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fee.”— Held that the subjects in question were carried to the sister by the special destination, and not to the trustees by the general disposition.

Headnote:

This was a Special Case for Mr Don and others, trustees of the deceased James Webster, Trinity Villa, Brechin, of the first part, and Miss Ann Webster, a sister of James Webster, of the second part.

Mr Webster died on 3d January 1875, possessed of considerable personal property, but his only heritable estate consisted of the subjects mentioned in two dispositions referred to below. Mr Webster left a trust-disposition and settlement, dated 11th June 1864, whereby he conveyed to the trustees therein named, or to be assumed under the powers conferred by the said deed, all and sundry lands and other heritable and real estate of every description, and wherever situated, which should belong to him at the time of his death, as also his whole moveable and personal means and estate of whatever kind, and wherever situated, which should belong to him at the time of his death. By the first purpose of the said trust-disposition and settlement the said James Webster provided for payment of his debts, death-bed and funeral expenses, and the expenses of executing the trust. By the second he provided for the delivery of certain specific bequests to the parties therein named. By the third he directed that each of his brothers and sisters was to receive a legacy of £400; but this sum was by the codicil, of date 11th April 1867, reduced to £150. By the fourth purpose of the trust-disposition and settlement the said James Webster directed that, in the event of his said sister Ann Webster surviving him, and remaining single and unmarried, his trustees should, after fulfilment or providing for the fulfilment as far as practicable of the above purposes, but that only while she should remain unmarried, pay to her, as the same should be received by his trustees, the free interest, income, or periodical produce to be derived from the capital or principal of the remainder of his trust-estate and effects, and to allow her the possession and use of his household furniture and plenishing, silver plate, bed and table linen, or what portion thereof his said sister should be pleased to keep in her possession, the remainder to be sold when she should think proper, and the price thereof to form part of the capital of his said trust-estate, and to the interest or profit to be derived therefrom she should be entitled as above provided. In the event of his said sister entering into marriage, he directed his trustees, as soon after that event as should be convenient for them, to pay to his said sister Ann Webster the sum of £500 sterling, and that in addition to the sum of £400 directed to be paid to her on his death, and her just and equal share of the remainder of his estate and effects thereinafter directed to be paid to her. By the fifth purpose the testator directed his trustees in the event of his said sister Ann Webster predeceasing him, or on her decease or being married, to convert his whole trust-estate and effects into money, and to deliver and pay over the proceeds thereof to his sisters and brothers then surviving him, equally among them, share and share alike, the lawful issue of a brother and sister who should have predeceased being entitled to succeed to their parents' share equally among them if more than one. Various codicils were subsequently added, but none of them bearing on the question raised by this Special Case.

By disposition of 26th and 27th January and 3d and 9th February 1874, the trustees of the late John Mitchell, in consideration of £500 paid them by Mr Webster, sold and disponed “to the said James Webster and his assignees and disponees, whom failing to Ann Webster, also residing at Trinity village, sister of the said James Webster, and her heirs and assignees whomsoever in fee, heritably and irredeemably,” certain lands and houses at Trinity Muir market-stance, at Brechin, By disposition dated 14th May and 13th June 1876, James Guthrie, agent for the Royal Bank of Scotland, Brechin, in consideration of £10 paid him by Mr Webster, sold and disponed “to the said James Webster and his assignees and disponees, whom failing to Ann Webster, also residing at Trinity village, sister of the said James Webster, and her heirs and assignees whomsoever in fee, heritably and irredeemably,” two other small plots of land at the same place. Mr Webster and his sister had lived together for thirty years prior to his death at various places, and latterly on these properties at Trinity village purchased by him.

By minute of admissions the following facts were further added to the case. The following members of the testator's family were at the date of the trust-deed, 11th June 1864, the whole living brothers and sisters—Alexander Webster, born 28th April 1801; David Webster, born July 1803, died 8th July 1872; Jean Webster or Don, born July 1805; Mary Webster or Taylor, born October 1811; Ann Webster, born 17th December 1813; and Isabella Webster or Fairweather, born October 1819. The testator himself was born 3d September 1799, and, except David, all his brothers and sisters survived him. Miss Ann Webster presented to the Sheriff of Forfarshire a petition for service as heir of provision in general to the said James Webster, under the disposition by Mitchell's trustees in his favour, and also as heir of provision in general to the said James Webster under the disposition by James Guthrie in his favour. The parties of the first part, however, maintained that the subjects contained in the said dispositions belonged to them in trust for the purposes mentioned in the said trust-disposition and settlement and codicils of the said deceased James Webster by virtue of the general conveyance contained in the said trust-disposition and settlement.

The opinion and judgment of the Court was asked upon the following questions—‘(1) Whether, in virtue of the general conveyance by the said James Webster in his trust-disposition and settlement, the subjects contained in the dispositions referred to belong to the parties of the first part, in trust for the purposes mentioned in the said trust-disposition and settlement and codicils? Or (2) Whether the said subjects contained in the two dispositions before mentioned now belong to the said Miss Ann Webster, as heir of provision of the said James Webster in virtue of the destinations therein contained.

Authorities quoted— Glendonwyn v. Gordon, May 19, 1873, 2 L. R. So. App. 317; Thoms v. Thoms, March 30, 1868, 6 Macph. 704; Catton v. Mackenzie, July 19, 1870, 8 Macph. 1049; Connell's Trs. February 23, 1866, 4 Macph. 465; Farquharson, March 2, 1756, M. 2290; Campbell, 1 Paton App. 343, M. 14,855; Fleming v. Fleming, M. “Implied Will,” App. No. 1.

At advising—

Judgment:

Lord Justice-Clerk—There are two principles, or rather legal presumptions, applicable to the construction of separate deeds, when each is conceived in terms capable of conveying the same property. One is that a special conveyance derogates from a general conveyance. The other is that the deed last in date derogates from that which is earlier in date. In the cases of Glendonwyn, Thoms, and others of that category, these two principles came into conflict; and it was contended that a general conveyance, although later in date than a special conveyance, must yet give way, on the ground that the other presumption in favour of a special conveyance was the stronger. But the present case reverses the conditions of all these authorities, for the special deed is the latest in date; and the two presumptions do not conflict but concur. They can only be overcome by the clearest indication of contrary intention.

But the indication of intention is all the other way. The words “his assignees and disponees” may no doubt embrace the assignees and disponees under the general settlement. But to give them this construction is to render the destination to his sister nugatory. The simple way to have effected that purpose was to take the title to himself in ordinary form. The special request to the trustees, the signature to the disposition, and the destination to his sister, would have no meaning on that assumption; or at least could only have received effect on a contingency which the testator could hardly have anticipated, namely, that he should have cancelled his general settlement and executed no other. The simple signification of the words evinces the true meaning. It means that if the disponee did not assign or dispone the property afterwards, it should go to his sister; and this is the result at which I arrive.

Lord Neaves—I regard this case as one not free entirely from difficulty, but I have come to the same conclusion. The general rule is established that the deed posterior in date must govern unless there is absolutely a conflict of presumptions. On the whole, I consider that Mr Webster's special object was to make this extra provision for his sister, and also I am of opinion that the clause of institution and substitution of Miss Ann Webster would have been quite unnecessary had his intention been that the older deed should take effect. This conclusion appears to me to be at once the safest and the most natural.

Lord Ormidale—All questions depending for their solution upon presumptions to be gathered from very indefinite expressions must necessarily cause great difficulty before a safe conclusion can be attained, but in this case I quite concur in the views expressed by your Lordships, and that chiefly on account of the very peculiar way in which Mr Webster worked the conveyance in 1874. I think, however, that by the expression “disponees and assignees” a reference was intended to any persons whom he might make such by any subsequent deed as to those special subjects. No such deed was ever executed, and I therefore think Miss Ann Webster must be found entitled to the house.

Lord Gifford—This is entirely a question as to the intention of the late James Webster. What did the late Mr Webster mean by the terms of his trust-deed and codicils of 1864 and 1865, and by the terms and destination in which he expressly took the two special dispositions of 1874, which special dispositions in testimony of his will and wish are subscribed by himself?

Even although Mr Webster had not subscribed these two special deeds, the question would not have been materially altered, because a purchaser who takes the disposition to himself in special terms, and with substitutions or destinations over, is held by acceptance of the deed to make it his own settlement of the subjects purchased.

In such cases the mode in which the question generally arises is, whether a substitution or special destination in the settlement of a particular subject is evacuated, destroyed, or altered by a subsequent general disposition and settlement of the testator's whole estate. In the present case the question arises differently, and in a somewhat unusual form, for it is whether Mr Webster's general trust-deed and settlement of 1864 is innovated upon, or whether an exception thereto is created by the special conveyances which he took in 1874. In both cases, however, and indeed in all such cases, the true question is, Quid sit voluntas testatoris?

Looking to the whole circumstances of the present case as disclosed in the deeds and in the Special Case for the parties as amended, I am of opinion that the subjects contained in the two dispositions of 1874 belong to Miss Ann Webster, and not to the trustees under the general settlement, and I think the questions put should be answered, the first in the negative, and the second in the affirmative.

In getting at the intention of the late Mr Webster from the deeds and circumstances before us, I begin by supposing, contrary to the fact, that the two special dispositions had been taken by Mr Webster first, and that then some years afterwards, at a greater or at a lesser interval, he had executed his general trust-disposition and settlement and codicils in the terms which are now before us. If this had been the case, would the general trust-disposition and settlement have evacuated the destinations in the special deeds, and carried the subjects to Mr Webster's testamentary trustees for the general purposes of his settlement.

Now, I think this would not be the effect of such a general settlement. I think the special settlement and destination effected by the dispositions to the villa at Trinity village and small piece of ground adjoining would not have been held to be superseded and destroyed by the mere general words in Mr Webster's universal settlement. General words in such a deed are always open to construction, if the intention of the testator can be gleaned, and I think the

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general rule is that a special subject precisely and definitively settled in a particular way, or in favour of a particular heir or substitute, is not affected by mere general words used by a testator in settling his whole means and estate. The subject specially settled is held not to have been in the testator's view unless the contrary can be shown, and in general a special provision should be specially revoked. There are very numerous instances of the application of this rule, the latest and most authoritative of which, trenching to some extent upon cases which preceded it, is the case of Glendonwyn v. Gordon, as decided in the House of Lords, 19th May 1873 (Law Rep. ii., Scotch Appeals 320). I do not think there is anything in the present case which, supposing the general trust-deed to have been lost, in date would have indicated the testator's intention thereby of cutting down the previous special destinations.

Now, I think the case actually before us is more favourable for Miss Webster, the special disponee or substitute, than it would have been had the general disposition been latest in date. Posteriora derogant prioribus applies emphatically in such cases as the present. The latest expression of the testator's will receives effect even though it be contrary to preceding indications, and the latest will in the present case is expressed in the special dispositions.

Mr Webster made his general settlement in 1864 containing various provisions in favour of his sister Miss Ann Webster, who was the only one of his sisters who resided with him. In 1874, having occasion to buy the villa in question for the occupation of himself and sister, he took the titles both of the villa and of the adjoining ground to himself and his assignees and disponees, whom failing to his sister Ann Webster, in the terms of the deeds before us, both of which he specially subscribes in token of the destination being the expression of his will. Now, I cannot help holding that by these deeds Mr Webster intended to give his sister Miss Ann Webster an additional benefit in his succession. He surely meant something by inserting her name as the disponee or substitute; and although undoubtedly he reserved full power of himself disposing of the subjects, I think he intended that failing any subsequent disposal thereof by himself it should go to his sister.

The contention for the trustees makes the special insertion of Miss Webster's name in the dispositions of 1874 absolutely meaningless, unless the testator be supposed to have intended to destroy his general settlement and die intestate; and this seems to me to be a most unlikely supposition. Miss Webster is only to take, the trustees' say, failing them the general testamentary trustees. I cannot think that this was Mr Webster's intention. I feel certain that had he so intended he would have expressed himself very differently. No doubt a difficulty arises from the expression in the special deeds after Mr Webster's own name, “and his assignees and disponees,” for undoubtedly in one sense his testamentary trustees are his assignees and disponees; but I think this is not the true meaning of the words. His “assignees and disponees” mean, I think, special assignees or special disponees in the special subject conveyed by the deed, and not mere general assignees in his general settlement. The intention was, that notwithstanding the destination of the villa to his sister, Mr Webster might sell or convey to whom he pleased, but that failing such special sale or conveyance Miss Webster should inherit it. Mr Webster never altered this special destination, and he never sold and disposed of the villa and ground, and I think we should now give effect to his will and purpose by finding that Miss Webster is entitled to the villa and pertinents in addition to her provisions under the general settlements.

The Court answered the first question in the negative and the second in the affirmative.

Counsel:

Counsel for First Parties— Crichton. Agents— Duncan & Black, W.S.

Counsel for Second Party— Mackay. Agents— G. & H. Cairns, W.S.
1876